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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36235

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ALEJANDRO MANUEL CASTILLO,

Defendant-Appellant.

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2010 Unpublished Opinion No. 705

Filed: November 12, 2010

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. Juneal C. Kerrick, District Judge. 

Judgment of conviction and sentence for aiding and abetting robbery, affirmed.

Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Deborah A. 

Whipple argued.

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. Nicole L. Schafer argued.

________________________________________________

PERRY, Judge Pro Tem

Alejandro Manuel Castillo appeals from the judgment of conviction entered upon a jury 

verdict finding him guilty of aiding and abetting robbery, Idaho Code §§ 18-6501-6503, 18-204. 

We affirm.

I.

FACTS AND PROCEDURAL BACKGROUND

On July 2, 2008, Anna Mireles and her family attended a fireworks display near Mercy 

Medical Center North in Nampa. Mireles, who was four months pregnant at the time and 

wearing a blue T-shirt, testified that as she walked back to her car with her daughter and her 

daughter‟s two friends, a man, later identified as Miguel Pastor, asked her whether she knew that 

“this was North Side territory.” Mireles responded, “Are you stupid? I‟m not a gang-banger. 

Look at me. Do I look like a gang-banger?” Mireles testified that Pastor, who was wearing a 

black shirt, then “gestured with his hands” and several individuals, who were all wearing 
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“red/black or . . . red belts,”1surrounded her, including Castillo, who was wearing a red shirt. 

The individuals began yelling “North Side, North Side,” and Mireles‟ brother, who had walked 

ahead with Mireles‟ husband, ran back towards her.

According to Mireles, her brother stated that Mireles was pregnant, at which point Pastor 

grabbed her purse and swung it at her while simultaneously running at her brother. The purse 

fell to the ground and everything fell out of it. Mireles testified that her daughter bent down and 

put everything back in the purse and was attacked by some girls that were “part of the people” 

with Pastor. Mireles hit two of the females with a lawn chair that she was carrying. Mireles 

testified that Castillo then picked up the purse and began running with it towards a red van. 

Mireles said, “He took my purse,” and her husband and brother ran after Castillo and a fight 

ensued next to the van. Mireles testified that at some point during the fight, Castillo, who no 

longer had the purse, attempted to jump into a little blue car.

Mireles‟ daughter also testified, and her testimony varied slightly from her mother‟s. She 

confirmed Mireles‟ account of the initial confrontation with Pastor. However, she testified that 

her mother put the purse down, that Pastor took the purse, swung it at Mireles, and then passed it 

off to Castillo. The daughter also testified that she was attacked right after she saw Castillo 

running off with the purse.

Another witness, Angelica Melendrez, testified that she was sitting in her van when she 

saw an individual in a black shirt swing a purse at someone, walk in front of her van really fast 

still carrying the purse, and open a door to a red van. Melendrez testified that she heard a 

woman yelling that someone had taken her purse. About “ten seconds later,” Melendrez saw an 

individual in a red shirt running, and a group of guys running after him. Melendrez testified that 

she saw the individual wearing the red shirt getting beat up. She then called the police regarding 

the fight and a possible stolen purse.

When officers arrived, they recovered the purse from a red van. Castillo was located in a 

“dark colored” car that was “like a Dodge neon.” Castillo began walking away from the vehicle, 

and an officer asked him to come back several times. When Castillo did not comply, the officer 

 

1 Mireles testified that she was familiar with “gang issues” in Nampa and that, based on her 

general knowledge, the color red was associated with the North Side gang and the color blue was 

associated with the South Side gang.
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took him into custody. The officer testified that Castillo appeared as though he had been in a 

fight. When Castillo was later interviewed, he told one of the investigating officers that he had 

been in a verbal altercation with a female regarding some comments he had made to some kids. 

The female left and came back with three males, one of whom had a bar and “called [Castillo] on 

to fight him.” The officer testified that Castillo admitted he was “involved in the fight,” but 

denied that he had taken the purse.

Castillo was ultimately charged in separate cases, which were later consolidated, with 

felony aiding and abetting robbery, two misdemeanor counts of battery, and a misdemeanor 

count of resisting and obstructing an officer. A jury found Castillo guilty of aiding and abetting 

robbery and resisting and obstructing an officer, but found him not guilty on the two counts of 

battery against Mireles‟ husband and brother. The court imposed a unified sentence of ten years, 

with two and one-half half years determinate on the aiding and abetting charge. The court 

imposed sixty days in jail on the resisting and obstructing charge, to run concurrent with the 

other sentence, with credit for time served. Castillo appeals.2

II.

ANALYSIS

A. Conflict of Interest

Castillo contends that he was denied his state and federal constitutional rights to conflictfree counsel.3

 Specifically, he contends that the district court was aware of a potential conflict of 

interest, that it failed to conduct an adequate inquiry into the conflict, and that this failure 

amounts to a violation of his constitutional rights requiring an automatic reversal of his 

conviction. Castillo argues that even if an automatic reversal is not required, either because the 

court had no duty to inquire or because it did make a sufficient inquiry, reversal is still required 

because an actual conflict of interest exists.

 

2 While Castillo requests this Court to reverse his convictions, it appears that there is only 

an appeal as to the aiding and abetting conviction.

3 Although Castillo contends that both constitutions were violated, he provides no cogent 

reason why the Idaho Constitution should be applied differently than the United States 

Constitution in this case. Therefore, this Court will rely on judicial interpretation of the Sixth 

Amendment in its analysis of Castillo‟s claims. See State v. Schaffer, 133 Idaho 126, 130, 982 

P.2d 961, 965 (Ct. App. 1999) (applying rule in context of Fourth Amendment claim).
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The Sixth Amendment to the United States Constitution guarantees that 

“[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of 

Counsel for his defence.” U.S. CONST. amend. VI. The amendment, as applied to the states by 

the Due Process Clause of the Fourteenth Amendment, Powell v. Alabama, 287 U.S. 45, 60-61 

(1932), has been interpreted to include the right to be represented by conflict-free counsel. Wood 

v. Georgia, 450 U.S. 261, 271 (1981). The right has been accorded “not for its own sake, but 

because of the effect it has on the ability of the accused to receive a fair trial.” Mickens v. 

Taylor, 535 U.S. 162, 166 (2002).

In order to ensure that a defendant receives conflict-free counsel, a trial court has an 

affirmative duty to inquire into a potential conflict whenever it knows or “reasonably should 

know that a particular conflict may exist.” State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 

(2003); see also Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). A trial court‟s failure to conduct 

an inquiry, under certain circumstances, will serve as a basis for reversing a defendant‟s 

conviction. Cuyler, 446 U.S. at 346-47; Holloway v. Arkansas, 435 U.S. 475, 488 (1978).

Whether a trial court‟s failure to adequately inquire into a potential conflict of interest is 

enough, on its own, to justify reversal depends on whether the defendant objected to the conflict 

at trial. State v. Severson, 147 Idaho 694, 703, 215 P.3d 414, 423 (2009); see also Cuyler, 446 

U.S. at 348. “In order to establish a violation of the Sixth Amendment, a defendant who raised 

no objection at trial must demonstrate that an actual conflict of interest adversely affected his 

lawyer‟s performance.” Cuyler, 446 U.S. at 348. The defendant need not, however, show

prejudice in order to obtain relief as the conflict itself demonstrates a denial of the right to have 

the effective assistance of counsel. Id. at 349-50. “But until a defendant shows that his counsel 

actively represented conflicting interests, he has not established the constitutional predicate for 

his claim of ineffective assistance.” Id. at 350. “On the other hand, once a defendant raises a 

timely objection to a conflict, the trial court is constitutionally obligated to determine whether an 

actual conflict of interest exists.” Severson, 147 Idaho at 703, 215 P.3d at 423. “A court‟s 

failure to make a proper inquiry after a defendant‟s timely objection will result in the automatic 

reversal of the defendant‟s conviction.” Id. “Because the trial court‟s duty to inquire after a 

defendant makes a timely objection is a separate and distinct obligation, a defendant in such 

circumstances need not show that an actual conflict adversely affected the lawyer‟s 

performance.” Id.
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In order to address Castillo‟s claim, it is important to note how the issue was raised 

below. On the morning of Castillo‟s trial, the district court indicated that the prosecutor desired 

to make a record of some matters prior to proceeding with the jury selection. The court, 

summarizing the events that had previously transpired affecting the case, noted that Miguel 

Pastor, Castillo‟s co-defendant, had been previously scheduled for a jury trial. Pastor‟s attorney, 

Dayo Onanubosi, who was with the Canyon County Public Defender‟s Office at the time, had 

originally requested a joint trial for Pastor and Castillo. Castillo‟s attorney, Alexander Briggs, 

who was also with the Canyon County Public Defender‟s Office, indicated that he would object 

to a joint trial.

The court further indicated that after initially requesting a joint trial, Onanubosi informed 

the court, at the time set for Pastor‟s trial, that his client could not proceed to trial because he 

believed there was a conflict of interest, “that they [the public defender‟s office] have to 

represent their client 100 percent, they represented what we call co-defendants, you, Mr. Castillo, 

as well as Mr. Pastor, and if they represent one, they needed the information from the other.” 

The court stated at that time that there was “probably” a conflict of interest relative to the 

representation of the co-defendants and ordered that Pastor be assigned a “conflicts attorney” and 

continued his trial. The court indicated that the conflicts attorney ultimately assigned to 

represent Pastor was Shari Dodge.

The prosecutor generally agreed with the court‟s summary of the events, and attempted to 

further explain his perception of what was going on in Castillo and Pastor‟s cases. The 

prosecutor indicated that while the State had been ready to proceed with Pastor‟s case the 

previous month, the conflict issue was raised and a jury had to be sent home. The prosecutor 

also represented that while the court had ordered a conflicts attorney assigned in Pastor‟s case, 

Onanubosi had subsequently appeared in court with Pastor advising that he had waived his right 

to a speedy trial and also indicating that following Castillo‟s trial, “there was a good possibility 

that the conflict they had in [Pastor‟s] case would evaporate at that time, and indicated he would 

presume [sic] his representation of the defendant.” The prosecutor requested that both Castillo 

and Pastor be afforded an in-camera proceeding without the prosecutor present where all 

potential conflicts could be explained to the defendants. The prosecutor also expressed his belief 

that the public defender‟s office was using the conflict issue as a tactic to try Castillo‟s case first 

and “hang onto [Pastor‟s] case -- depending on the outcome of [Castillo‟s case].” Based upon 
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these perceptions, the prosecutor requested an in-camera proceeding in order to make a record, as 

well as sanctions against the public defender‟s office for the cost of the jury.

Castillo‟s counsel, Briggs, responded to the prosecutor‟s comments stating that he had 

never appeared with Pastor and that he understood that Pastor had received conflict counsel the 

previous day. He then stated, “Mr. Castillo -- there‟s no conflict of interest for me representing 

Mr. Castillo in this trial.” The prosecutor disagreed, arguing that Briggs‟ representation was 

“exactly opposite” of what Onanubosi had said was a “serious enough conflict, that they had to 

vacate [Pastor‟s] trial and back out of the case last month.”

The district court expressed a concern about getting involved in a conflict of interest with 

respect to confidential communications between Castillo and his attorney, stating that it would 

not do “any good to do an in-camera,” as even the court could not inquire into areas of 

confidentiality absent some sort of waiver. The court asked whether Castillo would be willing, 

with respect to whether a conflict existed, to waive his right to confidentiality, to which Castillo 

responded, “I‟m not really -- there‟s no conflict that I‟m aware of.” The court asked whether he 

wanted different representation, and Castillo responded no. 

The court and the prosecutor disagreed as to whether the court could conduct an incamera hearing. The prosecutor reiterated his position that the court should “talk to the 

defendant” about potential conflicts of interest. The court maintained that it was unaware of any 

questions that it would be permitted to ask that would not interfere with the “confidentiality 

between attorney and client.” The court indicated that if Briggs wanted an in-camera conference, 

he could assess the need to outweigh confidentiality rights and request such a hearing. The court 

also addressed Castillo, stating: “If you want to inquire further of what this attorney for the State 

is talking about, a conflict of interest, I‟m more than willing [to] have you do that.” Castillo 

responded, “I see no conflict.”

As noted, where a defendant raises a timely objection to a conflict, the trial court is 

constitutionally obligated to determine whether an actual conflict of interest exists, and the 

failure to conduct a proper inquiry will result in an automatic reversal of the defendant‟s 

conviction. Severson, 147 Idaho at 703, 215 P.3d at 423. The court‟s duty of inquiry following 

a defendant‟s timely objection is a separate and distinct obligation and, as such, the defendant is 

not required to show that an actual conflict adversely affected the lawyer‟s performance in such a 

circumstance. Id.
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In this case, it is not disputed that Castillo never objected to any conflict of interest. 

Rather, as Castillo acknowledges, the issue was raised by the prosecutor. However, Castillo 

contends, in a footnote, that “[t]he fact that the attorney worked for the state rather than the 

defendant is of no import to the question of the proper remedy.” Castillo argues that because the 

prosecutor raised the issue, the court was constitutionally obligated to inquire, and its failure to 

do so requires automatic reversal. This argument fails to recognize, however, that the issue had 

already been presented to, and addressed by, the district court.

It is apparent that the court believed that it had dispensed with any issues relative to 

conflicts of interest. The court indicated that it was aware of a potential conflict regarding the 

two attorneys at the public defender‟s office representing co-defendants, and the court addressed 

that conflict by ordering the public defender‟s office to assign a conflicts attorney in Pastor‟s 

case. When the issue was raised again by the State in an effort to make a record, the court 

determined that it would not hold an in-camera proceeding due to its concern that it would be 

invading Castillo‟s confidentiality rights. The court‟s statements suggest that it was unaware of 

any conflicts of interest, other than the one the court believed it had already dealt with, that 

required the court to conduct any further inquiry. Based upon the record before us, we conclude 

that Castillo has not established that the court had any duty of further inquiry after it had ordered 

a conflicts attorney appointed in the co-defendant‟s case and was being assured by Castillo‟s 

counsel that no current conflict existed.

The mere fact that Castillo and Pastor were represented by attorneys in the same public 

defender‟s office does not require automatic disqualification. See State v. Cook, 144 Idaho 784, 

794, 171 P.3d 1282, 1292 (Ct. App. 2007) (“automatically disqualifying a public defender where 

another attorney in the office has a conflict of interest would significantly hamper the ability to 

prove legal representation of indigent clients”). In Cook, this Court concluded that a per se rule 

imputing conflicts of interest to affiliated public defenders is inappropriate “where there is no 

indication the conflict would hamper an attorney‟s ability to effectively represent a client.” Id. 

The Court held that “such conflict questions should be addressed by trial courts on a case-bycase basis, where the court takes individual situations into consideration to determine whether a 

defendant‟s right to counsel is threatened by competing interests.” Id.

Although the court acknowledged a potential conflict when the issue was initially raised

by Pastor‟s counsel and addressed it by ordering that a conflicts attorney be appointed, Castillo 
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maintains that a conflict existed before a conflicts attorney was assigned and relies upon the 

prosecutor‟s statements that had Castillo obtained a different attorney “they probably could have 

worked out a plea bargain deal where [Castillo] could have gotten off with a misdemeanor or 

something much less, and we would have been going after Mr. Pastor with his cooperation.” 

This assertion, however, is belied by Castillo‟s attorney‟s representation that an offer to plead 

guilty to a misdemeanor had been made, but it was rejected by the State. Moreover, Castillo has 

not argued that the court knew or should have known about a potential conflict of interest before 

it was actually raised in Pastor‟s case. At the time set for Castillo‟s trial, counsel once again 

assured the court that no conflict existed that affected his representation of Castillo. These 

circumstances simply did not warrant further inquiry by the court. Castillo has failed to

demonstrate any error on the part of the district court to establish a violation of his Sixth 

Amendment right to conflict-free counsel.

B. Prosecutorial Misconduct

Castillo next contends that the prosecution violated his constitutional right to a fair trial 

by committing various acts of prosecutorial misconduct. He asserts that the prosecutor engaged 

in misconduct during closing and rebuttal arguments by inflaming the prejudice and passions of 

the jury, shifting the burden of proof, and arguing that defense counsel was “annoying.” The 

State counters that Castillo failed to raise some objections at trial, that the prosecutor did not 

engage in misconduct, and that even if the prosecutor‟s statements were improper, any error was 

harmless.

Although our system of criminal justice is adversarial in nature, and the prosecutor is 

expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and 

required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in 

reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id. 

A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous 

objection we determine factually if there was prosecutorial misconduct, then we determine 

whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055 

(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). When there is no 

contemporaneous objection, however, a conviction will be reversed for prosecutorial misconduct 

only if the conduct is sufficiently egregious so as to result in fundamental error. Field, 144 Idaho 

at 571, 165 P.3d at 285.
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The Idaho Supreme Court recently took the opportunity to clarify the appellate standards 

employed when analyzing alleged trial errors for harmless error or fundamental error in State v. 

Perry, ___ Idaho ___, ___ P.3d ___ (July 23, 2010) (reh‟g pending). Where the defendant has 

demonstrated that prosecutorial misconduct has occurred, and such misconduct was followed by 

a contemporaneous objection, such error is reviewed for harmless error in accordance with 

Chapman v. California, 386 U.S. 18 (1967). Perry, ___ Idaho at ___, ___ P.3d at ___. “Under 

the Chapman harmless error analysis, where a constitutional violation occurs at trial, and is 

followed by a contemporaneous objection, a reversal is necessitated, unless the State proves 

„beyond a reasonable doubt that the error complained of did not contribute to the verdict 

obtained.‟” Id. at ___, ___ P.3d at ___ (emphasis in original) (quoting Chapman, 386 U.S. at 

24). Thus, Idaho now employs the Chapman harmless error test to all objected-to error. Id.

Where prosecutorial misconduct is not objected to at trial, a reversal may only occur 

when the defendant demonstrates that the violation qualifies as fundamental error. Id. at ___, 

___ P.3d at ___. The Perry Court held that in order to raise a claim of fundamental error that 

may be considered for the first time on appeal:

[T]he defendant bears the burden of persuading the appellate court that the alleged 

error: (1) violates one or more of the defendant‟s unwaived constitutional rights; 

(2) plainly exists; and (3) was not harmless. If the defendant persuades the 

appellate court that the complained of error satisfies this three-prong inquiry, then 

the appellate court shall vacate and remand.

Id. at ___, ___ P.3d at ___.

1. Inflaming the prejudice and passions of the jury

Castillo first argues that the prosecutor committed misconduct by commenting that the 

State‟s witnesses were brave for testifying, thus “implying that Mr. Castillo or others would 

harm them for accusing him of wrongdoing.” The prosecutor made two such comments, one in 

his initial closing argument and then again in rebuttal. The prosecutor stated in closing:

Ladies and gentlemen, I finally want to wrap up with the idea -- it‟s not an 

idea, but just the fact that, look, we had Anna Mireles and her daughter come in 

here and testify, and Ms. Melendrez, and that‟s a lot of courage. They have to 

live in this community, they have to live with the consequences no matter what 

happens.

Defense counsel did not object to this statement. The prosecutor later stated in rebuttal:
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At the end of the day, we have the victim, her daughter, another witness, 

they are taking a big step by coming in and saying, Yeah, this is what happened, 

this is what happened to us. They are being courageous to testify, but they have 

to go on --

Defense counsel objected to this second statement, and the objection was sustained.

With respect to the unobjected-to statement made during the initial closing argument, 

Castillo has not argued for application of the fundamental error doctrine. A party waives an 

issue on appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 

923 P.2d 966, 970 (1996). Even assuming the issue had been properly presented on appeal, we 

conclude the prosecutor‟s statement does not amount to fundamental error.4

With respect to the prosecutor‟s second statement, Castillo objected, and the court 

sustained his objection. Castillo did not move to strike the prosecutor‟s statement, nor did he

request a limiting instruction. Therefore, Castillo obtained the relief he requested, and we do not 

address his argument further.

2. Shifting the burden of proof

Castillo claims that the prosecutor shifted the burden of proof by arguing to the jury that 

Castillo should have put on his own witnesses to testify as to his innocence, specifically stating 

in his rebuttal argument:

Listen, the other thing I wanted to hit on was the missing witness thing. 

You know, yeah, there is lots of witnesses. What about all the girls that were with 

Alejandro and his friends? What about the girls that attacked Rose?

MR. BRIGGS: I am going to object to that, it sounds like he is shifting the 

burden.

THE COURT: Overruled. It‟s proper rebuttal.

Immediately following the objected-to statements, the prosecutor stated:

Thank you. They are missing witnesses, and it would be great to hear 

from all of them, but they are not here.

I mean, the thing is, you have got the evidence. You have got the victim, 

her daughter. You have got Angelica. You have got the officers. They are 

telling you this is basically what happened. You have got the evidence.

 

4 Castillo‟s attorney asserted at oral argument that because the Perry Court determined that 

its restatement of the standards “shall not be given retroactive application,” Perry at ___, ___ 

P.3d at ___, that case does not apply. However, because the prosecutor‟s statement would not 

qualify as fundamental error under either standard, we need not address counsel‟s contention that 

Perry does not apply.
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When placed in its proper context, it is clear that the prosecutor‟s argument was not an attempt to 

shift the burden of proof, but rather an attempt to demonstrate that there was sufficient evidence 

for the jury to find Castillo guilty. The prosecutor‟s argument merely highlighted the fact that 

despite the absence of some individuals who witnessed the events that evening, the jury had the 

material witnesses to establish the evidence supporting the charges. Therefore, we hold that the 

prosecutor‟s comment did not constitute error.

3. Disparaging defense counsel

Finally, Castillo asserts that the prosecutor committed misconduct by arguing to the jury, 

over his objection, that defense counsel was “annoying” when he attempted to pin Mireles down 

to time frames. However, a careful review of the record makes clear that the prosecutor, in 

response to defense counsel‟s argument, was expressing annoyance at defense counsel‟s tactic of 

pinning Mireles down to a specific time frame and then using it against her during closing 

argument. While the prosecutor‟s statement was, at most, inappropriate, it was not an attempt to 

disparage defense counsel personally. Therefore, Castillo has failed to demonstrate that the 

prosecutor‟s statement constituted misconduct.

Because we have found no errors, the cumulative error doctrine does not apply.

III.

CONCLUSION

Castillo failed to establish that the district court had a duty to inquire into a potential 

conflict of interest and, as such, did not show a violation of his Sixth Amendment right to 

conflict-free counsel. Castillo failed to preserve for appeal his argument that the prosecutor 

committed misconduct in his initial closing argument. Moreover, the prosecutor‟s statement did 

not constitute fundamental error. The prosecutor‟s statements in rebuttal argument did not 

constitute prosecutorial misconduct. The cumulative error doctrine does not apply in this case. 

Accordingly, Castillo‟s judgment of conviction and sentence entered thereon are affirmed.

Judge GUTIERREZ and Judge MELANSON, CONCUR.